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ANALYSIS OF JANUARY 18, 2011 CAV OPINION

[Posted January 18, 2011] The Court of Appeals gives us one published opinion today.

Criminal law

Years ago, when legislatures cracked down ever more heavily on drug distribution, someone came up with a great idea – enact a specific prohibition of drug sales within a given proximity to a school, where vulnerable victims could be found. Our legislature settled on a distance of 1,000 feet, and enacted a statute making it a separate crime to possess drugs that close to a school, with the intent to distribute.

Today the Court of Appeals decides an appeal based on a conviction under that statute – Bynum v. Commonwealth involved such possession 910 feet away. The sole issue in the appeal is just how we know it really was 910 feet.

If you think about it, proving distance in a case like this can be fairly labor-intensive. You could hire someone with a measuring wheel to pace off the distance, but that might present a problem if there are intervening buildings or other obstacles. Unfortunately, our Commonwealth doesn’t come with a set of yellow lines drawn at the 1,000-foot limit.

Portsmouth Police solved this problem in Bynum’s case by using an aerial photograph on which someone in a lab had marked off a 1,000-foor perimeter, measured from the nearest school. Bynum’s point of arrest fell safely within the marked line.

But that didn’t satisfy Bynum; he objected that the marked line was hearsay, added by a witness against him who was absent at trial, and who he couldn’t cross-examine. The trial court overruled this objection, but to be safe, the prosecutor then added some follow-up: another officer testified that he scaled off a known distance on the photo, and then extrapolated that to come up with the 910-foot figure. The court accepted this evidence and convicted Bynum.

The appellate court’s analysis of this is, to my mind, unsatisfying. The opinion first labors to find that the lines on the photo weren’t statements at all, comparing them to the digital display on a caller-ID device. That might well apply for the photo itself – I presume that some witness testified that the picture fairly and accurately depicted the neighborhood – but not for the lines drawn on it. Those have to be at least an implicit (and probably an explicit) representation by some absent person that, “the 1,000-foot boundary is right here.”

But then the panel adds a second basis for the holding that makes perfect sense to me: the testimony by the second officer means that there was sufficient evidence in the record to convict, so the sketched-in line was at worst harmless error. I agree. But if that’s the basis for it, why did the court give us what amounts to an advisory opinion, in a highly controversial matter? Wouldn’t it have been better to decide the case on the narrowest ground possible, assuming without deciding that the lines were inadmissible hearsay?

It doesn’t matter for poor Bynum; he’s guilty, no matter how you get there.